1. Concept of Unfair Labor Practice

Unfair labor practice refers to an employer's violation of the three rights of labor: the right to independent association, collective bargaining, and collective action. The employer can intentionally destroy the function and activities of the labor union with anti-union animosity. Therefore, unfair labor practice by the employer must be prohibited in order to secure the basic rights of the employees.


2. Types of Unfair Labor Practice
1) Unfair treatment

Dismissal or unfavorable treatment of a worker on grounds that he/she has joined or intends to join a labor union, or has attempted to organize a labor union, or has performed any other lawful act for the operation of a labor union.


① Is it an unfair labor practice to promote a union officer to a position which does not allow him to belong to a labor union?
Whether a personnel order to a certain union member is an unfair labor practice or not shall be determined collectively in consideration of all the factors, such as relations between the timing of the order and union activities, job necessity, eligibility and the rationale for the personnel selection, and the relations between the company and the labor union. Consideration will also be given to whether a personnel order is an attempt to violate the employees’ three rights. However, when a personnel order to a union member is implemented as a regular personnel order because of job necessity or general standards, such a personnel order shall not be deemed as an unfair labor practice.⁵²²⁾
② In cases where an employer fires an employee who staged a sit-in without the union's resolution or instruction, the employer does not commit an act of unfair labor practice.
An employee staged a sit-in and, in doing so, obstructed the business. Furthermore, the sit-in was not due to a union resolution or instruction but was simply on the employee's own initiative. The employer's decision to dismiss the employee on the grounds of the unauthorized sit-in does not constitute an act of unfair labor practice.⁵²³⁾
③ If an employer promotes an employee who is entitled to join the union to a higher position which prevents him/her from joining the union, is this an act of unfair labor practice?
In order to determine whether such job promotion constitutes an act of unfair labor practice, it is necessary to consider the timing of the promotion, its impact on union activities, necessity of the promotion for business purposes, the employee's job skills, reasonability of the promotion, etc. If the employer's decision to promote the employee to a higher post was based on reasonable criteria for personnel management and the principle of equitability, the promotion is not an unfair labor practice, given that the employee had refused to accept the promotion.⁵²⁴⁾
④ If an employer, with a view to interfering with union activities, transfers a unionist employee to another location of work where it is not easy to perform union work, this is an act of unfair labor practice.
The employee in question played a leading role in expanding union membership and worked more than 20 years in the production department. He was first transferred to a job in the public affairs department, for which he had no experience, and was then removed to a remote office where he was not entitled to several employee benefits and could hardly do any union work as there were only three or four employees working. Unless the employer proves the necessity of such job transfer for business purposes, the transfer constitutes an unfair labor practice.⁵²⁵⁾
⑤ If an employer transfers employees to a different location of work in order to prevent them from joining the union and doing union work, the employee transfer is an act of unfair labor practice.
The reason given by the employer for such employee transfer was to fill vacancies at the location to which they were transferred. The real reason, however, was to prevent them from joining the union and engaging in union activities. Therefore, the transfer is an act of unfair labor practice. Furthermore, the dismissal of those employees because they failed to follow the transfer instructions also constitutes a case of unfair dismissal.⁵²⁶⁾
2) Conditional Contract (Yellow dog contract)

A yellow dog contract provides employment to a worker on the condition that he/she should not join or should withdraw from a particular union. The condition also guarantees continuous employment.
① It is illegal to strictly control admission to the labor union in the Union Shop Contract.
The labor union is not allowed to refuse an eligible employee membership in the union. In cases where all employees join the labor union in accordance with the Union Shop provision in the Collective Bargaining Agreement, the employer shall dismiss employees who withdraw from union membership upon the labor union’s request, despite the CBA being silent on the issue. Accordingly, when the labor union refuses admission of an employee, this will directly lead to a condition where the employer shall dismiss the employee because the employee does not hold union membership. Unless the union member has a special reason(e.g., he was expelled from the union), the union cannot reject/her his application for membership. It is illegal and unfair to have restrictions for membership. The restrictions typically found are that the employee must receive prior approval from the labor union in order to join the labor union or the employees who withdraw from union membership should receive a concurrent vote of a two-thirds majority of the members present in the Representatives Meeting or the General Meeting if he wants to join the labor union after withdrawing. Accordingly, under no special condition, enforcing such restrictions is an abuse by the labor union of the right of faith and sincerity.⁵²⁷⁾
② The scope of employees engaged in the workplace under the Union Shop Contract.
According to the proviso of Article 81(2) of the Labor Union Act, in cases where a labor union represents more than a two-thirds majority of employees in the workplace concerned, a Collective Bargaining Agreement, where every employee is hired on condition that he/she join the labor union, which is called a Union Shop Contract, can be allowed as an exception. In these cases, the scope of employees engaged in the workplace means employees who are eligible for union membership among all employees by Article 2(1) of the Act, excluding an employer or other persons who always act in the interest of the employer according to Article 2(4) of the Act.⁵²⁸⁾
③ If a collective agreement provides for a union shop system in which every employee is a member of the union, should the employer dismiss an employee who has departed from the union?
Under the union shop system, which is intended to strengthen the bond among the union members, a precondition for employment is to join the representative union. If a collective agreement includes a clause on union shop, the employer is obliged to dismiss an employee who has walked out of the union, even if there is no additional clause. However, the employer's obligation to dismiss an employee departing from the union is simply his/her obligation under the collective agreement. It cannot be always said that the employer's non-compliance with the obligation constitutes his/her unfair intervention in or domination over the union, which is an act of unfair labor practice.⁵²⁹⁾
3) Refusal of the right to collective bargaining

Refusal or delay of the execution of a collective agreement or other collective bargaining without justifiable reason with the representative of a labor union or person authorized by the labor union is co